When President Obama announced that he would seek to appoint a justice to the Supreme Court who had empathy, Orin Kerr at Volokh Conspiracy attempted to figure out what he meant. Orin used Obama’s words when he voted against John Roberts’ nomination as Chief Justice to frame the issue:
[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
Before Turk reads this quote and places undue emphasis on the marathon analogy, this has nothing to do with running, and is not an endorsement of Eric Turkewitz, not that he wouldn’t be empathetic or a wonderful choice. This quote formed the basis for Norm Pattis to create the Trench Lawyer Movement, a post that Orin obviously neglected to read before writing his post. No doubt Kerr regrets that omission now.
Orin accepted the premise that 95% of the cases considered by the Supremes would be easily disposed of as a matter of precedent, with all competent judges readily agreeing in the proper disposition. The “empathy” factor, therefore, only came into play in the 5% of cases where the law failed to provide an “obvious” answer due to legal ambiguity. (Don’t get stuck on the percentage, as it’s a somewhat arbitrary number only intended to make the point that the percentage of cases in which there is a real dispute is relatively small.) Orin offered two ways to think of how a justice would deal with that final 5%:
Orin accepted the premise that 95% of the cases considered by the Supremes would be easily disposed of as a matter of precedent, with all competent judges readily agreeing in the proper disposition. The “empathy” factor, therefore, only came into play in the 5% of cases where the law failed to provide an “obvious” answer due to legal ambiguity. (Don’t get stuck on the percentage, as it’s a somewhat arbitrary number only intended to make the point that the percentage of cases in which there is a real dispute is relatively small.) Orin offered two ways to think of how a justice would deal with that final 5%:
One approach is to see legal ambiguity as cause for judicial weighing. This view sees the role of the judge as narrow. The judge must weigh the best legal arguments on one side and the best legal arguments for the other, and must pick the side that has the better of it, no matter how slight the advantage.
The other approach is to see legal ambiguity as cause for judicial empowerment. This view sees the judge as dutifully following the law when the law is clear. But as soon as there is some ambiguity, and the law is unclear, then the judge is free to decide the case however he wants.
While the latter explanation was phrased in an obviously negative light, and for which Orin had his head ripped off by a couple hundred commenters, it was less intended to be pejorative than to make clear that it provided an opportunity for justices to exercise their “empathetic” views to fill the gap that the law left behind.
Dan Solove at Concurring Opinions took issue with Orin’s characterization of the empathetic judge as being “lawless” or “activist” in that 5% gap,
Dan Solove at Concurring Opinions took issue with Orin’s characterization of the empathetic judge as being “lawless” or “activist” in that 5% gap,
Ironically, empathy in the first sense would not be replacing law with politics as some critics may charge at least not from Hart’s perspective. In hard cases, the law is silent.
In the second sense, is empathy more akin to lawlessness? True, in a Hartian perspective, the judge who finds more cases to be hard will find more cases to be beyond the law. But if those cases are indeed hard cases, then such a judge isn’t being lawless. In fact, such a judge is being faithful to the law by not twisting it to fit cases it doesn’t fit.
Sadly, the issue gets perverted by the common critique that judges are being lawless or activist. The issue is much more complicated, and it involves questions in jurisprudence that haven’t been adequately worked out.
While Dan admirably argues what empathy is not, there is no definition of what empathy is, or should be.
I start my approach from an entirely different stance than Orin or Dan, which should come as little surprise to either. Initially, I reject Obama’s characterization of cases falling within the 95-5 percent framework. When a case reaches the Supreme Court, it tends to have been subject to numerous levels of sanitization, meaning that all the ugly humanity has been drained from the statement of facts and the justices are shown a simplistic, cleansed vision of complex human interaction, and then asked to make its decision on a set of facts that never, in reality, existed.
From my seat, one can either accept the sanitized version of reality or one can look more deeply into the facts as they crawled uphill to Washington. One of my constant criticisms of Supreme Court decisions is that they reflect a vision of conduct (and here I’m limiting my thoughts to criminal cases, since that’s obviously my focus) that we, trench lawyers, know isn’t real. People are described as one dimensional, with singular motivations and characterized as entirely good or evil, honest or lying, worthy or unworthy. The Supreme Court Justices tend to adopt these characterizations uncritically, and thereby make difficult decisions far easier.
In my view, the empathetic judge is the one who rejects the simplistic version of a sanitized humanity, and views the human beings behind the briefs as living, breathing people, engaging in conduct that cannot be summed up in one sentence, with complex motivations, and engaging in conduct based on a breadth of influences. In other words, the empathetic judge rejects the reduction of humanity to a sanitized caricature. This will really screw things up on the bench, as it would require the justices to delve far deeper into reality than they are ever inclined to go.
When judges stop viewing the cases before them as “pat”, far more cases become “difficult” in the sense that they are no longer the clean, clear issues with the weighing of relative merit having been predigested for them.
This leads to the next element of empathy, the weighing process. In almost every Supreme Court decision, the issue before the Court requires a weighing of rights against authority, the government’s power to effectively execute its function. This is, without question, where the empathy factor is most critical. The Supreme Court, being both part of a branch of government and being comprised of people whose views have been framed by a lifetime of service within the government, tends to overestimate the value of government effectiveness and underestimate the value of personal freedom and protection. In other words, the Justices perform their weighing function with the finger already on the government’s side of the scale.
Another criticism I’ve often levied on the Supremes is their lack of connection and understanding of how ordinary people think, feel, act and believe. Most justices don’t hang out with regular folks often enough to understand, and even less with the downtrodden. They go to different cocktail parties. The Justices often dismiss the value of constitutional rights to real people with shocking regularity, and tend to lack an appreciation of the fact that most of us, at our most basic, believe that we have the right to be left alone.
This lack of appreciation of how ordinary people view their rights is apparent in Justice Scalia’s recent decision in Kansas v. Ventris, where he dismissed as inconsequential a defendant’s right to counsel post arraignment. This seemed to be a no-brainer; a defendant represented by counsel shouldn’t be questioned by the cops (or their agents). Yet the decision went the other way. This is one in a line of cases where the Court begins with the premise that a constitutional violation has, unquestionably, occurred, yet holds that there need be no remedy for suppression would hinder the effectiveness of police.
One can only deem the effectiveness of police more important than providing a remedy for an undisputed violation of the Constitution by a lack of empathy. This over-appreciation of the need for governmental effectiveness demands justices who fail to understand that ordinary people believe that the proscriptions of the Constitution must mean something, and don’t when they can be admittedly violated at will. As this weighing process occurs in almost every criminal case before the Supreme Court, then empathy will alter the calculation by taking into account the expectation of the citizenry that our favorable constitutional platitudes will find enforcement by our top court. The empathetic judge will appreciate that people aren’t swayed or appeased by sophistry that manages to always favor government effectiveness over their constitutional rights.
The final element of empathy addresses another great failing of the Supreme Court, providing meaningful guidance of how we are to act following the rendering of a decision. A pervasive problem with the Court’s decisions is that, after all is said and done, they have failed to provide any clear direction to the rest of us. In other words, they decide cases but fail to sufficiently answer the real question so that we know what to do with their decision.
This was recently the case in Gant, but the best recent example is D.C. v. Heller, the blockbuster 2nd Amendment decision that left more questions on the table than it answered. As the Court knew, absolutely, positively knew, that it opened the door to a bunch of questions that had to be answered in order to provide meaning to its central holding, Justice Scalia’s abject failure to address these questions was an affront to the people.
An empathetic justice understand that a decision of the Supreme Court is not merely fodder for law review articles, or even blawg posts, but a guidepost for how real lives are judged, and how real people get locked up in prison, or freed on the rare occasion that a case goes the right way. The empathetic justice comprehends that the Supreme Court does not engage in intellectual exercise, but in determining how ordinary folks are to guide themselves in their everyday conduct. To do this, the decisions of the Court must answer the questions that real people have, in a way the provides meaning to real people. The empathetic justice asks whether the Court’s ruling clarifies or muddies the waters for real people, whether for better or worse, the Supreme Court has made itself relevant to society by performing its function as the court of last resort.
Unlike Orin’s view of the empathetic justice flexing her empathetic muscles on the five percent of cases where the decision isn’t obvious, I believe that the empathetic justice will comprehend that many, perhaps most, decisions fail to satisfy the needs of the people for the reasons I’ve outline. The empathetic judge, therefore, is the judge who considers the Supreme Court’s function in terms of how it applies to, impacts, affects, guides and helps the lives of all those people who believe that there are nine people wearing robes in Washington whose job it is to protect us from the government. Who care.
And you already know what sort of lawyer I believe best suited to this task.
I start my approach from an entirely different stance than Orin or Dan, which should come as little surprise to either. Initially, I reject Obama’s characterization of cases falling within the 95-5 percent framework. When a case reaches the Supreme Court, it tends to have been subject to numerous levels of sanitization, meaning that all the ugly humanity has been drained from the statement of facts and the justices are shown a simplistic, cleansed vision of complex human interaction, and then asked to make its decision on a set of facts that never, in reality, existed.
From my seat, one can either accept the sanitized version of reality or one can look more deeply into the facts as they crawled uphill to Washington. One of my constant criticisms of Supreme Court decisions is that they reflect a vision of conduct (and here I’m limiting my thoughts to criminal cases, since that’s obviously my focus) that we, trench lawyers, know isn’t real. People are described as one dimensional, with singular motivations and characterized as entirely good or evil, honest or lying, worthy or unworthy. The Supreme Court Justices tend to adopt these characterizations uncritically, and thereby make difficult decisions far easier.
In my view, the empathetic judge is the one who rejects the simplistic version of a sanitized humanity, and views the human beings behind the briefs as living, breathing people, engaging in conduct that cannot be summed up in one sentence, with complex motivations, and engaging in conduct based on a breadth of influences. In other words, the empathetic judge rejects the reduction of humanity to a sanitized caricature. This will really screw things up on the bench, as it would require the justices to delve far deeper into reality than they are ever inclined to go.
When judges stop viewing the cases before them as “pat”, far more cases become “difficult” in the sense that they are no longer the clean, clear issues with the weighing of relative merit having been predigested for them.
This leads to the next element of empathy, the weighing process. In almost every Supreme Court decision, the issue before the Court requires a weighing of rights against authority, the government’s power to effectively execute its function. This is, without question, where the empathy factor is most critical. The Supreme Court, being both part of a branch of government and being comprised of people whose views have been framed by a lifetime of service within the government, tends to overestimate the value of government effectiveness and underestimate the value of personal freedom and protection. In other words, the Justices perform their weighing function with the finger already on the government’s side of the scale.
Another criticism I’ve often levied on the Supremes is their lack of connection and understanding of how ordinary people think, feel, act and believe. Most justices don’t hang out with regular folks often enough to understand, and even less with the downtrodden. They go to different cocktail parties. The Justices often dismiss the value of constitutional rights to real people with shocking regularity, and tend to lack an appreciation of the fact that most of us, at our most basic, believe that we have the right to be left alone.
This lack of appreciation of how ordinary people view their rights is apparent in Justice Scalia’s recent decision in Kansas v. Ventris, where he dismissed as inconsequential a defendant’s right to counsel post arraignment. This seemed to be a no-brainer; a defendant represented by counsel shouldn’t be questioned by the cops (or their agents). Yet the decision went the other way. This is one in a line of cases where the Court begins with the premise that a constitutional violation has, unquestionably, occurred, yet holds that there need be no remedy for suppression would hinder the effectiveness of police.
One can only deem the effectiveness of police more important than providing a remedy for an undisputed violation of the Constitution by a lack of empathy. This over-appreciation of the need for governmental effectiveness demands justices who fail to understand that ordinary people believe that the proscriptions of the Constitution must mean something, and don’t when they can be admittedly violated at will. As this weighing process occurs in almost every criminal case before the Supreme Court, then empathy will alter the calculation by taking into account the expectation of the citizenry that our favorable constitutional platitudes will find enforcement by our top court. The empathetic judge will appreciate that people aren’t swayed or appeased by sophistry that manages to always favor government effectiveness over their constitutional rights.
The final element of empathy addresses another great failing of the Supreme Court, providing meaningful guidance of how we are to act following the rendering of a decision. A pervasive problem with the Court’s decisions is that, after all is said and done, they have failed to provide any clear direction to the rest of us. In other words, they decide cases but fail to sufficiently answer the real question so that we know what to do with their decision.
This was recently the case in Gant, but the best recent example is D.C. v. Heller, the blockbuster 2nd Amendment decision that left more questions on the table than it answered. As the Court knew, absolutely, positively knew, that it opened the door to a bunch of questions that had to be answered in order to provide meaning to its central holding, Justice Scalia’s abject failure to address these questions was an affront to the people.
An empathetic justice understand that a decision of the Supreme Court is not merely fodder for law review articles, or even blawg posts, but a guidepost for how real lives are judged, and how real people get locked up in prison, or freed on the rare occasion that a case goes the right way. The empathetic justice comprehends that the Supreme Court does not engage in intellectual exercise, but in determining how ordinary folks are to guide themselves in their everyday conduct. To do this, the decisions of the Court must answer the questions that real people have, in a way the provides meaning to real people. The empathetic justice asks whether the Court’s ruling clarifies or muddies the waters for real people, whether for better or worse, the Supreme Court has made itself relevant to society by performing its function as the court of last resort.
Unlike Orin’s view of the empathetic justice flexing her empathetic muscles on the five percent of cases where the decision isn’t obvious, I believe that the empathetic justice will comprehend that many, perhaps most, decisions fail to satisfy the needs of the people for the reasons I’ve outline. The empathetic judge, therefore, is the judge who considers the Supreme Court’s function in terms of how it applies to, impacts, affects, guides and helps the lives of all those people who believe that there are nine people wearing robes in Washington whose job it is to protect us from the government. Who care.
And you already know what sort of lawyer I believe best suited to this task.
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Orin assumed that “empathy” meant for Obama a preferential option for the powerless vis-a-vis the powerful. But what this conception of empathy might mean in the criminal law context is unclear: is the judge supposed to have extra empathy for the powerless criminal defendant or the powerless alleged crime victim? Outside the criminal law context, does it mean a preferential option for the powerful government so long as it justifies what it wants to do by pretending to benefit the powerless, or does it mean a preferential option for the poor powerless taxpayers who must bear the burden of the government’s costly and inefficient social programs?
I like my law a little more principled and certain than that. In my view, every presumption should be against government power and coercion and in favor of individual liberty. And this presumption is not just a quirky personal preference on my part, but is justified by a close reality-based examination of the sources of government authority, or the lack thereof. I would expect such a presumption to favor both criminal defendants and taxpayers. And just yesterday I newly discovered a champion of this approach, whom I recommend to your and Obama’s consideration: The Right Kind of Empathy: Judge Andrew Napolitano for U.S. Supreme Court Justice.
John, John, John, Still trying to sneak those links in. Well, I’m going to let you have this one (though this is it, so don’t get your hopes up) because of what I’m about to say next. I have listened to Napolitano, as he took over my slot at Fox News after I refused to do the earlier time period. How do I put this nicely? How do I put this nicely? I would rather stick a needle in my eye than see Napolitano on any bench anywhere ever. While the sounds emitting from his lately sound sweet, they strike a discordant note with what I’ve heard for years. I am not a believer, by any stretch.
I was a little unclear on your links policy. I knew very well you wouldn’t go for links to a commercial site, though I assume you’re okay with links to relevant blog posts, so long as it’s not a link to one’s own blog? My thinking was that if a commenter has said something similar elsewhere that’s relevant to your post, it would make sense to link to it, although I can see where this would get out of hand. In any event, I think I now understand your policy and will abide by it.
As far as Napolitano goes, I realize of course that he has no chance whatsoever of being appointed to a bench anywhere, and I would think his judicial philosophy would be a major reason why. That in itself though doesn’t make his judicial philosophy incorrect. Your opposition to him on a personal level is enigmatic. There seems to be lot of background there which I and your other readers are not privy to. Is it simply because he took over your slot and promotes himself? From what you’ve said, I don’t understand your hard feelings toward him, as it sounds like you left Fox News pretty much voluntarily. Do you think that he now doesn’t believe his own rhetoric? Understood if you don’t want to go into it. I just like what he says now, and judge it for what it is. I don’t see myself paying to hear him talk or fawning over his every word.
Aha! You edited your comment while I was in the midst of writing my reply. Your edited version kind of answers my reply (in that you seem to like what he says now). Thanks.
I was just going to offer you the opportunity to change your response when you posted this. But to add a note, this post isn’t about Napolitano, and his insertion into the comments is a tangential matter because my post made you think of him. I would prefer if we could not go off into left field, or actually a few blocks past left field, in the comments. Neither Napolitano, nor your view of who would make a good choice for Supreme Court Justice, has anything to do with this post, and I regret that I’ve engaged in this discussion (which is why I changed my response to your original comment).